Citation Nr: 0724313
Decision Date: 08/07/07 Archive Date: 08/20/07
DOCKET NO. 05-32 987 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for residuals of
botulism, to include as due to Agent Orange exposure.
2. Entitlement to service connection for a deviated nasal
septum.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran had active service from August 16, 1966 to June
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2004 RO rating decision
that denied service connection for residuals of botulism, to
include as due to Agent Orange exposure, and for a deviated
nasal septum. In September 2006, the veteran testified at a
Travel Board hearing at the RO.
FINDINGS OF FACT
1. Residuals of botulism were not shown in service nor are
such currently shown.
2. The veteran's deviated nasal septum was not present
during service or for many years thereafter, and was not
caused by any incident of service.
CONCLUSION OF LAW
1. Residuals of botulism were not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R.
§ 3.303 (2006).
2. A deviated nasal septum was not incurred in or aggravated
by service. 38 U.S.C.A §§ 1110, 5107 (West 2002); 38 C.F.R.
§ 3.303 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) redefined VA's duty to assist the veteran in the
development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006).
The notice requirements of the VCAA require VA to notify the
veteran of what information or evidence is necessary to
substantiate the claim; what subset of the necessary
information or evidence, if any, the claimant is to provide;
what subset of the necessary information or evidence, if any,
the VA will attempt to obtain; and a general notification
that the claimant may submit any other evidence he has in his
possession that may be relevant to the claim. Sanders v.
Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements
apply to all five elements of a service connection claim:
veteran status, existence of a disability, a connection
between the veteran's service and the disability, degree of
disability, and effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such
notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). Id; see
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, insufficiency in the timing or content of VCAA
notice is harmless if the errors are not prejudicial to the
claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004) (VCAA notice errors are reviewed under a prejudicial
error rule); see also Sanders, supra.
In this case, in a March 2004 letter, issued prior to the
decision in appeal, the RO provided notice to the veteran
regarding what information and evidence is needed to
substantiate the claims, as well as what information and
evidence must be submitted by the veteran, what information
and evidence will be obtained by VA, and the need for the
veteran to advise VA of or submit any further evidence he has
in his possession that pertains to the claim. A March 2006
letter advised the veteran of how disability evaluations and
effective dates are assigned, and the type of evidence which
impacts those determinations.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file includes the
veteran's service medical records; post-service private
treatment records; lay statements; records from the Social
Security Administration (SSA); and hearing testimony. The
veteran stated that records from his private physicians
showing treatment following service no longer existed. The
record was held open for 60 days following the veteran's
Board hearing to allow the veteran to submit additional
evidence. No evidence has been submitted.
As discussed above, the VCAA provisions have been considered
and complied with. The veteran was notified and aware of the
evidence needed to substantiate the claims, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence. There is no indication that there
is additional evidence to obtain, there is no additional
notice that should be provided, and there has been a complete
review of all the evidence without prejudice to the veteran.
As such, there is no indication that there is any prejudice
to the veteran by the order of the events in this case. See
Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993).
Moreover, as the Board concludes below that the preponderance
of the evidence is against the veteran's claims, any question
as to an appropriate evaluation or effective date to be
assigned is rendered moot. Any error in the sequence of
events or content of the notice is not shown to have affected
the essential fairness of the adjudication or to cause injury
to the claimant. See Sanders, supra. Thus, any such error
is harmless and does not prohibit consideration of this
matter on the merits. See Conway, supra; Dingess, supra; see
also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998).
Analysis
The Board has reviewed all the evidence in the veteran's
claims file, which includes: his contentions and testimony;
service medical records; post-service private treatment
records; SSA records; and lay statements. Although the Board
has an obligation to provide adequate reasons and bases
supporting this decision, there is no requirement that the
evidence submitted by the veteran or obtained on his behalf
be discussed in detail. Rather, the Board's analysis below
will focus specifically on what evidence is needed to
substantiate each claim and what the evidence in the claims
file shows, or fails to show, with respect to the claim. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Evidence
of continuity of symptomatology from the time of service
until the present is required where the chronicity of a
condition manifested during service either has not been
established or might reasonably be questioned. 38 C.F.R. §
3.303(b). Regulations also provide that service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disability was incurred in service. 38
C.F.R. § 3.303(d).
In order to prevail on the issue of service connection there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
medical evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App.
341, 346 (1999).
I. Residuals of Botulism
A veteran who served in the Republic of Vietnam during the
Vietnam era is presumed to have been exposed during such
service to certain herbicide agents (e.g., Agent Orange). In
the case of such a veteran, service connection for listed
diseases will be presumed if they are manifest to a
compensable degree within specified periods. 38 U.S.C.A. §
1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).
The veteran had active service from August 1968 to June 1970.
His DD Form 214 indicates that he had no foreign and/or sea
service.
His contentions appear to be that he ingested food or drink
which had Agent Orange in it, causing botulism at that time.
He stated that he was paralyzed for a short period of time.
He also appears to indicate that the tainted food or drink
was an assassination attempt on his life. There is no
evidence of record that the veteran served in the Republic of
Vietnam or credible evidence of exposure to Agent Orange
during service. Further, botulism is not a disorder presumed
to be related to Agent Orange. 38 C.F.R. § 3.309.
The veteran's service medical records do not show complaints,
findings, or diagnoses of botulism. A February 1968
treatment entry noted that he had a Hong Kong flu shot the
previous day and that he presently had vomiting and diarrhea.
The examiner noted that the veteran's abdomen was soft and
that his bowel sounds were hyperactive. The impression was
flu. An August 1969 entry noted that the veteran had typical
ulcer symptoms. The impression was probable peptic disease.
On a medical history form at the time of the veteran's June
1970 separation examination, he checked that he did not have
frequent indigestion or stomach, liver, or intestinal
trouble. He also denied a history of paralysis. Further,
the reviewing examiner noted that the veteran denied all
pertinent medical or surgical history. The June 1970
objective separation examination report noted that the
veteran's abdomen and viscera were normal.
Post-service private treatment records do not show treatment
for botulism or for any residuals of botulism.
Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. See 38 U.S.C.A. §§ 1110;
1131. In the absence of proof of present disability there
can be no valid claim. Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328
(1997) (38 U.S.C.A. § 1131 requires existence of present
disability for VA compensation purposes); see also Wamhoff v.
Brown, 8 Vet. App. 517, 521 (1996). Here, the evidence
indicates no present residuals of botulism, nor any evidence
of that disorder in service. Thus, service connection is not
warranted.
The veteran has alleged that he suffered from botulism in
service and has residuals thereof. However, the veteran, as
a layperson, is not competent to give a medical opinion on
the diagnosis or etiology of a condition. See Bostain v.
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown,
10 Vet. App. 183, 186 (1997) ("a layperson is generally not
capable of opining on matters requiring medical knowledge").
Moreover, the Board notes the evidence raises a question as
to the credibility of the veteran's contentions. At the time
of the hearing, it was conceded that he has some memory
problems. Further, written statements from the veteran
regarding some in-service activities are inconsistent with
his service dates. For example, he stated that while at
Lackland Air Force base he was called on to handle the
Austin, Texas sniper in the tower on the university campus.
He stated that the siege went on for quite some time before
he arrived, fired one shot, climbed the tower and strapped
the shooter onto his back, then climbed back down the tower.
The sniper shooting in Austin, Texas occurred on August 1,
1966, several weeks prior to the veteran's entrance in
service. In light of the evidence as a whole, the Board
finds the veteran's recollections as to what occurred in
service are simply not reliable.
In summary, the Board concludes that the preponderance of the
evidence is against a finding that the veteran currently
suffers from residuals of botulism, to include as due to
Agent Orange exposure. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). In the absence of evidence
of the condition in service or presently, the claim must be
denied.
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v.
Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1990).
II. Deviated Nasal Septum
The veteran contends that his nose was shattered in service,
but that it was asymptomatic because he was clinically dead
at the time. However, he stated he could not recall how the
injury occurred, maybe by falling. He stated the injury
caused his heart to stop and that after he was shocked, he
jumped off the table and ran from the hospital.
The veteran's service medical records show no complaints,
findings, or diagnoses of a deviated nasal septum or an
injury to his nose or face. On a medical history form at the
time of the June 1970 separation examination, he checked that
he had no ears, nose, throat, or sinus trouble. He denied a
history of head injury, heart palpitations, memory loss and
broken bones. The reviewing examiner noted that the veteran
denied all pertinent medical or surgical history. The June
1970 objective separation examination report included a
notation that the veteran's nose was normal. Evaluations of
the veteran during his period of service make no reference to
a deviated nasal septum.
The first post-service evidence of a deviated nasal septum is
in June 2003, decades after the veteran's period of service.
In this regard, a June 2003 treatment report from J. E.
Griffin, M.D., noted that the veteran had some complaints of
nasal obstruction and also a stuffy nose. Dr. Griffin
indicated that the veteran had a septal deflection with a
large septal spur into the right side of the nose. It was
reported that the veteran had 3 to 4+ turbinates and that no
pus or polyps were seen in the nose. The impression included
nasal obstruction from deviated nasal septum and turbinate
hypertrophy.
A June 2003 treatment report from A Davidson, M.D., related
an impression that included a nasal obstruction from a
deviated septum, and turbinate hypertrophy.
The Board observes that the medical records do not suggest
that the veteran's current deviated nasal septum is related
to his period of service.
The veteran has alleged in statements and in his testimony
that his deviated nasal septum resulted from a shattered nose
in service. However, the veteran, as a layperson, is not
competent to give a medical opinion on the diagnosis or
etiology of a condition. See Bostain v. West, 11 Vet. App.
124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App.
492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"). Moreover, as noted
above, the veteran's recollections regarding events in
service are not reliable. The Board finds highly probative
the service medical records making no reference to a
shattered nose or clinical death and resuscitation.
The weight of the competent evidence demonstrates that the
veteran's deviated nasal septum was first noted many years
after his period of service and was not caused by any
incident of service. This condition was neither incurred in
nor aggravated by service. As the preponderance of the
evidence is against the claim, the benefit-of-the-doubt rule
does not apply, and the claim for service connection for
bronchitis, to include as due to mustard gas, must be denied.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
Service connection for residuals of botulism, to include as
due to Agent Orange exposure, is denied.
Service connection for a deviated nasal septum is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs